The Benefits Of Expunging (Erasing) A Victim's Protective Order
Tulsa criminal defense attorney Stephen Cale discusses the benefits of getting a Victim's Protective Order expunged, or erased, from public record. He also outlines the expungement process.
Laws change from time to time. This is for educational purposes and not legal advice.
What Is An Expungement?Oklahoma*s Protection From Domestic Abuse Act defines what an expungement is. Under the Act, expungement means *the sealing of victim protective order (VPO) court records from public inspection, but not from law enforcement agencies, the court or the district attorney.*
So, if you have a victim*s protective order against you, it may be possible to get it sealed from a public record but not from the court or district attorney.
Benefits Of An ExpungementThe state statutes concerning VPO expungements provide that when an expungement is granted, *the subject official actions shall be deemed never to have occurred, and the persons in interest and the public may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to the persons.*
In other words, it*s as if the alleged misconduct complained of in the original VPO petition, the facts concerning it, and the granting of the protective order never happened.
Additionally, under the law:
Employers, educational institutions, state and local government agencies, officials, and employees cannot legally require, in any application or interview or that an applicant disclose any information contained in sealed protective order court records.
An applicant for a job, school, etc can legally: a) not answer any question concerning the records; and b) not provide information that has been sealed, including any reference to or information concerning the sealed information.
Moreover, the applicant may legally state that no such action has ever occurred. Also, an application may not be denied solely because of the refusal of the applicant to disclose protective order court records information that has been sealed.
Who Qualifies For An ExpungementSomeone who wants an expungement of a VPO against them must be within one of the following categories. There are four of them.
The first category occurs when the Court grants an ex parte victim*s protective order but it is terminated: a) before the full hearing; b) dismissed upon a full hearing; or c) for failure of the plaintiff to appear for full hearing, and at least ninety 90 days have passed since the date set for full hearing.
Remember, an ex parte victim*s protective order is a temporary order. It is granted without the judge hearing defendant*s side of the case. Because of this, a full hearing is set at a later date to hear the other side. You can learn more about this in the article and video about the stages of a victim*s protective order case.
The second category occurs when plaintiff filed an application for a victim protective order but failed to appear for the full hearing and at least ninety (90) days have passed since the date last set by the court for the full hearing, including the last date set for any continuance, postponement or rescheduling of the hearing.
The third instance is when the plaintiff or defendant has had the order vacated and three (3) years have passed since the order to vacate was entered.
Lastly, a motion to expunge can be sought when the plaintiff or defendant is deceased.
*Plaintiff* means the person who sought or filed for, the victim protective order (VPO). The *Defendant* is the person or persons to whom the victim protective order (VPO) was directed.
Where The Expungement Can Be FiledTulsa criminal defense attorney Stephen Cale says that if a person fits within one or more of the four qualifications listed above, he or she may file a petition for expungement in the district court where the victim*s protective order originated. For example, the VPO was granted in Tulsa County District Court, then that*s where the petition for expungement must be filed.
What The Expungement Filing Must StateThe petition must state:
a) whether the defendant in the protective order has been convicted of any violation of the protective order; and
b) whether any prosecution or complaint is pending in this state or any other state for a violation or alleged violation of the protective order that is sought to be expunged.
The petition must further state which of the four categories listed above applies.
Notice To The Other PartyThe other party to the protective order must be mailed a copy of the petition by certified mail within 10 days of filing the petition. A written answer or objection may be filed within 30 days of receiving the notice and petition.
When the Petition for Expungement is filed, the court will set a date for a hearing. At least a 30-day notice of the hearing must be given to all parties to the protective order, the district attorney, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of the victim protective order (VPO) court record.
Factors The Court ConsidersThe court may order the victim*s protective order court record, or any part of it, to be sealed from public inspection when:
1) there is no objection from the other party to the victim protective order (VPO); or 2) if the court finds that *the harm to the privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public and safety interests of the parties to the protective order in retaining the records.*
However, any law enforcement agency, the district attorney or the court can still access the VPO record. An expungement order *whether granted or denied * may be appealed by any party to the protective order or by the district attorney to the Oklahoma Supreme Court.
Can Anyone See Sealed VPO Records?Inspection of the protective order court records included in the expungement order may thereafter be permitted only upon petition by the persons in interest who are the subjects of the records or without petition by the district attorney or a law enforcement agency in the due course of an investigation of a crime.
Any record ordered to be sealed under the expungement statute *may be obliterated or destroyed at the end of the ten-year period.*
There are instances in which facts in sealed records can still be used in court. The expungement statute provides that *the introduction of evidence regarding actions sealed pursuant to the provisions of this section at any hearing or trial for purposes of impeaching the credibility of a witness or as evidence of character testimony. ** So, in very limited circumstances, sealed records could still be used.